Delhi District Court
State vs . Radha Kant & Anr. on 11 June, 2009
IN THE COURT OF SH. DIG VINAY SINGH, LD. ACMM03 (IPR) ROHINI
COURT COMPLEX, DELHI
STATE VS. RADHA KANT & ANR.
FIR no. 32/06
U/S: 63 CR Act & 103/104 Trademark Act
PS : Kashmere Gate (IPR)
11/06/2009
ORDER ON CHARGE
Pre: Ld. APP for State Sh. Pradeep Gangwar
Both accused namely Radha Kant and Vijay Kumar are present on bail.
Accused no. 1 Radha Kant states that his counsel Sh R P Singh is not
present today but he has told him to concede to framing of charge.
Counsel Sh. Hamendra Singh Kashyap is present for accused no. 2 Vijay
Kumar. His arguments on charge heard.
1.Brief facts of this case are that a complaint was made, on behalf of AB SKF and SKF India Ltd company, by Sh Krishan Kumar who claimed himself to be Authorized representative on behalf of said complainant. My predecessor court ordered Search Warrants u/s 93 Cr. P. C. In the complaint, it was alleged that complainant company is the registered trademark proprietor of AB SKF and SKF products. Complainant alleged that some persons are indulging in infringement of trademark and accordingly on 19012006 a raid was conducted at the ground floor of Order on Charge /State Vs. Radha Kant &Anr/ FIR no. 32/06 PS: Kashmere Gate ( IPR) page 1 of 6 dtd. 110609 premises no. 3188, Gali Suiwali, Ram Bazar Mori Gate, Delhi where accused no. 1 Radha Kant was present in person as owner of the premises and from his possession following articles were recovered: (1) 81 pieces of ball bearing of various sizes having falsified trademark of 'SKF' packed in polypack.
(2) 136 pieces of ball bearings duly packed in packaging material falsified Trademark of 'SKF'.
(3) One refurnishing machine used for tightening and cleaning of ball bearing. (4) One heating machine, one packaging machine, 28 stencils bearing the falsified trademark of 'SKF' and one plastic bottle containing chemical all used for making duplicate ball bearing.
(5) 35 KG of packaging material bearing falsified trademark 'SKF'.
2. All these articles were bearing falsified trademark and accordingly the accused was arrested. Accused no. 1 disclosed that he supplied these infringed articles to accused no. 2 Vijay Kumar Jain also. Accordingly, premises of Vijay Kumar Jain i.e. 3636, Chowk Mori Gate, Delhi, where business was being run under the name and style Tayal Bearing and Tractors was raided. Accused no. 2 Vijay Kumar Jain was physically present there on the sale counter of the shop and from his shop total 2750 pieces of ball bearing of various sizes duly packed in packaging material bearing falsified trademark of "SKF" were recovered.
3. Accordingly, on completion of investigation, chargesheet was filed against both the accused for the offences u/s 103/104 Trademark Act, 1999 Order on Charge /State Vs. Radha Kant &Anr/ FIR no. 32/06 PS: Kashmere Gate ( IPR) page 2 of 6 dtd. 110609 and also u/s 63 Copyright Act, 1957.
4. Counsel for accused Vijay Kumar Jain argues that there are contradictions in the statement made by the coaccused and the owner of premises; there are contradictions in the name appearing on the rent agreement and other documents and all these things creates doubt. It is also argued that accused no. 2 Vijay Kumar Jain has been falsely implicated and that compliance of section 115 (4) of Trademark Act, 1999 for search and seizure was not made rendering the search as illegal. It is also argued that Krishan Kumar was neither duly constituted attorney nor executor of the attorney in his favour was themselves were duly constituted and therefore no case could have been registered.
5. Law regarding considerations at the stage of charge is wellsettled now. The court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out. It is held that when the material placed before the court discloses great suspicion against the accused which has not been properly explained the court will be justified in framing charge. The judge should not make a roving inquiry into the pros and cons of the matter and weigh the evidence is if he was conducting a trial. If on the basis of materials on record a court could come to the conclusion that commission of the offence is a provable consequence, a case of Order on Charge /State Vs. Radha Kant &Anr/ FIR no. 32/06 PS: Kashmere Gate ( IPR) page 3 of 6 dtd. 110609 framing of charge exists. To put it differently, if the courts were to think that the accused might have committed the offence it can frame a charge , though for conviction the conclusion is required to be that the accused has committed the offence. At the stage of framing of a charge probative value of the materials on record cannot be gone into, the material brought on record by the prosecution has to be accepted as true at that stage. The truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under S. 227 or S. 228 of the code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. But at the initial stage if their is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. While deciding the question of framing of charge in a criminal case, the Order on Charge /State Vs. Radha Kant &Anr/ FIR no. 32/06 PS: Kashmere Gate ( IPR) page 4 of 6 dtd. 110609 court is not to apply exactly the standard and test which it finally applies for determining the Guilt or otherwise. This being the initial stage of the trial, the court is not supposed to decide whether the materials collected by the investigating agency provides sufficient ground for conviction of the accused or whether the trial is sure to culminate in his conviction. What is required to be seen is whether there is strong suspicion which may lead to the court to think that there is ground for presuming that the accused has committed an offence. Reliance placed on the cases of Union of India vs. Prafulla Kumar AI R 1979 Supreme Court 366 :
State of Maharashtra and others vs. Som State of Bihar v.
Nath Thapa and others JT 1996 (4) SC 615 ;
Ramesh Singh, AI R 1977 S C. 2018: (1 977 CRI LJ 1606) ; Umar
Abdula Sakoor Sorathia vs. Intelligence officer narcotic control bureau JT 1999 (5) SC 394 ; Kallu Mal Gupta vs. State 2000 I AD Delhi 107.
6. In a cognizable offence it hardly matters as to who is the complainant. Offence as above are all cognizable offence. In a cognizable offence anybody can set law into motion and even the police officer can investigate the matter suo moto. Whether the complainant was duly constituted attorney or not are questions of fact which requires trail.
Similarly, whether the accused is falsely implicated or not is a question of Order on Charge /State Vs. Radha Kant &Anr/ FIR no. 32/06 PS: Kashmere Gate ( IPR) page 5 of 6 dtd. 110609 evidence. Simply because Section 115 (4) of Trademark Act has not been complied with i.e. opinion of the Trademark Registrar was not obtained before making search and seizure, it does not entitle the accused to claim discharge. Law is well settled even if a search or seizure is illegal, benefit of the same cannot go to the accused unless prejudice is shown to have been caused. This question can be determined only when evidence is taken. None of the contentions raised by counsel for accused entitles him for discharge and in my considered view once the two accused were physically found present at the place of recovery and recovery was effected in their presence which were containing falsified trademark and also which were infringing the copyright of complainant company, prima facie it is sufficient to frame charges u/s 63 Copyright Act, 1957 as also u/s 103 & 104 Trademark Act, 1999. Let charges be framed against both the accused for the offences u/s 63 Copyright Act, 1957 as also u/s 103 & 104 Trademark Act, 1999. Charges framed separately to which both accused claim trial. Put up for PE on 22122009.
Announced in the open court (DIG VINAY SINGH)
on 11062009 ACMM03 (IPR)
ROHINI / DELHI
Order on Charge /State Vs. Radha Kant &Anr/ FIR no. 32/06 PS: Kashmere Gate ( IPR) page 6 of 6 dtd. 110609